[1] It is important to note that NTRBs are not created by the Act. They are pre-existing bodies upon which certain functions are bestowed. Currently the majority of (if not all) NTRBs are incorporated community-based Aboriginal and/or Torres Strait Islander organisations, such as land councils or legal services.
[2] S203BA(2) and s203AI
[3] s203BF(1)
[4] The question of what constitutes "Aboriginal and Torres Strait Islander processes" is not homogenous but varies across community and context. However, Behrendt outlines some critical, generic differences in the values intrinsic in the two systems: Aboriginal (to use Behrendt's terminology) communities embrace values of communality, egalitarianism, cooperation and consensus, whilst non-Aboriginal values include those of individualism, hierarchy, competition and authoritarianism. It could be said, at the very least, that the process of one will not necessarily match those of the other. See Behrendt L (1995) Aboriginal Dispute Resolution Federation Press, NSW, 27-30.
[5] Nettheim G (1998) Discussion Paper 7: Governance Bodies and Australian Legislative Provisions for Corporations and councils University of New South Wales and Murdoch University. Available at http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/arccrp/dp7.html; accessed 17th February 2000.
[6] Schedule 3 (Part 1) Native Title Amendment Act 1998 (Cth)
[7] Schedule 3 (Part 2) Native Title Amendment Act 1998 (Cth)
[8] ss2(4) Native Title Amendment Act 1998(Cth)
[9] Although the official terminology is "recognition" the term "rerecognition" has been coined because the process involves a reassessment of NTRBs already recognised under phase 1, who choose to reapply. Only one Representative Body will be recognised for each Aboriginal and Torres Strait Islander Commission (ATSIC) region. s203AD(4)
[10] Aboriginal and Torres Strait Islander Commissioner Information Paper: Implementation of New Legislative Provisions Relating to Native Title Representative Bodies November 1998, 2
[11] ibid
[12] s203BB Native Title Act 1993 (Cth). References to legislation throughout this paper will be references to the Native Title Act 1993 unless otherwise indicated.
[13] s203BE
[14] s203BF
[15] s203BG
[16] s203BH
[17] s203BI
[18] s203B(4)
[19] s203BJ
[20] s203BA(1)
[21] s203BA(2)(a)
[22] s203BA(2)(b)
[23] s203BA(2)(c)
[24] s203AI
[25] s203AD(1)
[26] s203AI(1)
[27] pursuant to s203AI(2)
[28] s203AI(3)
[29] s203AH(1)
[30] s203AH(2)
[31] Aboriginal and Torres Strait Islander Commission Proposed Changes to the Native Title Act 1993, Issues for Indigenous Peoples, November 1996, 28. The relevant amendments have also been criticised for being paternalistic, overly rigorous and open to misuse by a Government with a vested interest in native title legal actions: Senators Woodley, Margetts and Bolkus, Senate, Hansard, 2 December 1998, 10 000 - 10 011.
[32] Aboriginal and Torres Strait Islander Commission (1995) Review of Native Title Representative Bodies ATSIC, Canberra, iii (the Parker Report)
[33] Mr P Keating, Prime Minister, House of Representatives, Hansard, 16 November 1993, 2881; Australia, House of Representatives, Native Title Bill 1993 Explanatory Memorandum Part B 1993, 70; Preamble, NTA.
[34] Above, n32, viii
[35] id 13
[36] For example, see excerpts from submissions to: Parliament of the Commonwealth of Australia (November 1996) The Native Title Amendment Bill 1996: Sixth Report of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund 69-82. See also Parker, above n. 32, 16-23
[37] Parker, ibid 16-17
[38] id 23
[39] Senator Minchin, Minister Assisting the Prime Minister, Senate, Hansard, 2 December 1997, 10002
[40] id 10005
[41] Aboriginal and Torres Strait Islander Commission Review of Native Title Representative Bodies March 1999, 12 (the Rashid Report)
[42] This is a fact not lost on the Opposition and minority parties in Senate debates, relating to the ability of the Commonwealth Minister to indirectly access NTRB documents which are the subject of parliamentary privilege:s203DG(2). See Senate, Hansard, 2 December 1997, 10006-100011
[43] above, note 41, 28
[44] ibid
[45] Aboriginal and Torres Strait Islander Commission Procedures Relating to Applications for Recognition as a Native Title Representative Body May 1999, 26-27
[46] As suggested in the Parker Report, above n 32, 16-17. See also Mantziaris C and Martin D 91999) Guide to the Design of Native Title Corporations National Native Title Tribunal, Commonwealth of Australia, Perth, Ch 4.
[47] Dispute resolution functions under s203BF
[48] Streamlining requirements under s203BC(3)
[49] Senator Woodley, Senate, Hansard, 2 December 1997, 10001
[50] Although the Opposition and minor party contributions to Senate debates on the level of accountability would suggest that the amendment in fact erodes the potential for self determination: Senate, Hansard, 2 December 1997, 9997-10006
[51] s203BE(5)
[52] s203BE(3) & s203BE(4)
[53] Above n 41, 33
[54] ibid
[55] id 34
[56] There are a variety of types of ILUAs provided under the Act, which may be formed by the NTRB in conjunction with its NTRB constituent, or on its own: s24. The goal of such provisions is to encourage and permit non-adversarial approaches to dealing with Native Title.
[57] Above n41, 34
[58] Pursuant to Division 3 of Part 2. These provide NT holders or potential NT holders with an opportunity to register to become involved in negotiations over the proposals for use of the land.
[59] s203BG
[60] For example, Rashid reports that "the Cape York Land Council (CYLC) received over 240 low impact notices from a State agency in a single day in or around mid-January [1999]." An assessment of workload for that same Council over a four week period in relation to 175 notifications was 250 hours involving both administrative and legal staff, and not accounting for fieldwork consultations and "in kind" support from other agencies and groups: above n. 41, 43-44
[61] Above n41, 35
[62] Above n10
[63] His comments pertained to the power of the Minister to rerecognise, rather than derecognise, NTRBs on the basis of political considerations. However the argument is equally valid in relation to withdrawal or recognition: Senator Nick Bolkus, Senate, Official Hansard, 2 December 1997, 9998.
[64] Senate, Official Hansard, 2 Dec 1997, 10003
[65]
above note 46
[66] ibid 1-2.